September 24, 2007

"Argument by impressionistic psychodrama."

I have a review of Jeffrey Toobin's "The Nine: Inside the Secret World of the Supreme Court" in the New York Sun.

ADDED: My main problem with the book is a general problem with popular writing about law (and politics and plenty of other serious subjects). To make it readable and entertaining, you forefront the people, not the ideas, you use a lot of colorful details, and, like a novelist, you make the details seem to express deep things about the characters. Within this rhetorical style, when there are any ideas or events to describe, they seem to arise from the depths of your characters.

Toobin describes Supreme Court cases like that, and because his book is entertaining and readable, many people will get their view of the Court from it. The material analyzing the actual arguments and opinions in the cases is cut way back, as if the author wrote with constant awareness of how little patience you would have for any legal analysis. This is understandable, up to a point. But this extreme minimization of the legal material allows for much sleight of hand, and like a novelist, you are led to take the point of view of some characters over others. He's really making an argument -- an "argument by impressionistic psychodrama."

You don't get to read how Chief Justice John Roberts analyzed the equal protection precedent in deciding the Louisville and Seattle school integration cases and how Justice Breyer saw the same precedent in a different way. Instead you feel along with Justice Breyer: "Breyer's wan longing for stare decisis will stir few hearts," Toobin writes (at page 339). Wan longing! It reminds me of something Stephen Colbert said on the first episode of "The Colbert Report": "Anyone can read the news to you. I promise to feel the news at you." Anyone can explain the cases to you. Toobin feels the cases at us. And the reader, who's had his feeling massaged for 300+ pages, will read of Breyer's "wan longing" and think: I will be one of the few! My heart is stirred!

But you haven't been given the material to decide if the bad guys are really trashing the precedents. You're just accepting the viewpoint of the judges you've been felt at to think are the good ones. They feel sad, so it must be a calamity. "David Souter was shattered" (page 177), so Bush v. Gore was atrocious.

What is missing is the analytical substance that would let you decide for yourself. In the review, I write:
[H]uman individuals drive the law, as Mr. Toobin tells it. The story of Jay Sekulow, "a nice Jewish boy from Brooklyn" whose "ignorance" was "his best weapon," swells the 12-page chapter on the Supreme Court's religion cases, but there isn't a word about the Rehnquist Court's most important Free Exercise case, Employment Division v. Smith. Smith, written by the conservative Justice Scalia, said religion was not entitled to special exceptions from generally applicable laws. (You can't avoid the Controlled Substances Act, for example, by saying you need to use peyote in a religious rite.)

Smith doesn't fit the theory that the conservatives are out to favor religion or the proposition that the religion cases "usually come down simply to ‘What will Sandra do?'" Justice O'Connor opposed the doctrinal shift in Smith, as did the three most liberal justices: William Brennan, Thurgood Marshall, and Harry Blackmun. It was a liberal tenet that the Free Exercise Clause relieves religious practitioners from requirements the law imposes on everyone else. To bring up Smith would require Mr. Toobin to acknowledge that conservatives favor equality and liberals want to favor religion and that would mess up the narrative arc of his story.
There's something else in the religion chapter that I couldn't fit into the review. When Toobin writes that Jay Sekulow's "ignorance" was "his best weapon," he's portraying the lawyer as someone who bumbled into using the Free Speech Clause to win protection for religious activities. Toobin writes that Sekulow didn't realize that "cases involving religion were always argued under the Free Exercise Clause."

But a mere 3 pages earlier, he was praising Robert Jackson's 1943 opinion in West Virginia Board of Education v. Barnette -- the case that said schools couldn't force Jehovah's Witnesses to recite the Pledge of Allegiance. Toobin doesn't mention that Barnette is a free speech case and that Sekulow competently cited it.

(And what about all the cases based on the Establishment Clause? They involve religion, even if they aren't litigated by Jay Sekulow.)

The pop culture approach Toobin uses demands that the individual, not the case law, governs what happens. It's a little like the "great man" theory of history -- the inferior man theory of the law.

It is fun to read though. Jay Sekulow is "a nice Jewish boy from Brooklyn," who moved to Atlanta and out of laziness attended Atlanta Baptist College. There, accepting a challenge by a "Jesus freak" to take the Book of Isaiah seriously, he saw that the messiah must be Jesus and became one of the "Jews for Jesus." Etc. etc.... and that's why we have the recent cases that say it violates the Free Speech Clause to discriminate against the religious viewpoint.

It makes sense if you get caught up in the seductive pop culture reading that is "The Nine."

And another thing....

Writing about Barnette, Toobin enthuses about Justice Jackson's idealistic prose: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." But he makes Justice Kennedy seem foolish for his love of "drama and what he called 'the poetry of the law'" (page (147), "flowery language about the First Amendment" (page 167), and "Kennedyesque flourish like 'the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life" (page 223). But Toobin's not much different from everyone else there. Jackson had the knack for high-flown phrases, and Kennedy can't quite pull it off.

And I'm not completely opposed to pop culture writing about law. I do it too, and I follow my own standards of fairness. Like I think it's fair to tweak Toobin for making a big deal out of Kennedy's glasses -- how he changed from "seventies-style steel-framed aviators" to "a Euro-chic frameless model." This supposedly symbolized how much Kennedy is soaking up the influence of Europeans and European law as he travels to various conferences. What I find so hilarious is that on the back cover of the book jacket -- where there aren't any words at all, just a big picture of the smiling Jeffrey Toobin -- he's wearing rimless glasses. Meaningful!

(And aren't steel-framed aviator glasses in style right now?)


Gedaliya said...

A "good read" with little substance. I guess it's what we'll be reading next year on the beach, found on the remainder table for $2.95.

Ann Althouse said...

Toobin will sell a lot of copies. That's one of the reasons lawprofs are nipping at his ankles.

hdhouse said...

i wrote a comment to the review...if it gets in i won't comment on it again here....

EnigmatiCore said...

Kaus points out a little bit of trying to have it both ways on Justice Thomas.

Pogo said...

Sounds like Toobin has written a good historical novel.

John said...

This is typical of all Supreme Court reporting. The media is generally uniformed and frankly not bright enough or interested enough to write a decent objective analysis of what is going on. Instead, they give cartoon versions with the conservative Elmer Fudd block of Thomas, Alito, Scalia and Roberts hunting the liberal Buggs Bunny Block of Suiter, Breyer, Ginsberg and Stevens with Kennedy playing referee. The media never stops to think that not every case concerns affirmative action or abortion. For every hot buttom political case the Court decides there are 100s of lesser known but very important cases on lower profile areas of the law where the justices vote in different blocks and conservatives disagree with each other and vote with liberal members of the court. You never get any kind of intellectual feel for the court from the media. They just cover it like a Presidential campaign.

Darkbloom said...

There's a funny copyediting error on page 63, in the section about Clinton considering Cuomo for the Supreme Court. Reproduced here with the same typography:
Clinton and Cuomo had a complicated relationship. Clinton admired The New Yorker's way with words but found his indecisiveness maddening.
Jeffrey Toobin is, of course, a staff writer at The New Yorker.

lee david said...


Did you write the title? It's brilliant and your review is fantastic. I have been following your posts on the book with amusement. The thing that pops into my head when reading the excerpts that you have provided is that Toobin has been tasked with writing a description that is to be used by a comic book artist to draw a panel by panel comic book exposition of the supreme court, speech bubbles and all.

Zeb Quinn said...

Don't know, just guessing here, but don'tcha think that Toobin's editors at Doubleday were persistent and emphatic in clearly telling him exactly what they expected to see and not see in this book? They wanted nonsubstantive inside goo if not out-and-out gossip, because they think that's what sells. Toobin seems to possess the bona fides to write a more scholarly work, it'd probably be every bit as slanted --he is what he is after all--, but, yes, more scholarly. But that isn't what they wanted at Doubleday.

Ann Althouse said...

Lee: I didn't write the title of the review over there ("Justice on the Couch"), but I wrote my title over here ("Argument by impressionistic psychodrama" -- which is the last line of the review).

Ralph said...

"Clinton admired the New Yorker's way with words but found his indecisiveness maddening"
Some people think the same of Clinton, but I always thought his speeches banal and trite. He was only interesting when trying to get out of a tight spot, when careful parsing was required to find the wiggle.